Can the US legally kill its own citizen without due process?

Efforts to legislate the way that humans murder each other in international conflicts has always seemed a bit strange, though necessary it may be. By outlawing certain methods, there’s a tacit agreement than slaughter of some kind is necessary. When the name of the game is killing, it seems a bit perverse to impose “OK” and “not OK” ways of doing things.

But killing one’s own citizens, that’s an easier nut to crack. In America there are pretty clear rules about the way that criminals, even treasonous ones, are treated, which is why the recent murder of American citizen and hateful Al Qaeda mouthpiece Anwar al-Awlaki is bound to be highly controversial. Despite his message of violence and destruction, al-Awlaki is American (he has dual citizenship with Yemen) and is thus to be treated not as an enemy combatant, but as a citizen with rights of due process… right?

Well, maybe. Over at Wired, there’s a smart discussion between two top-level military law experts with starkly contrasting opinions:

“Charlie Dunlap says that Awlaki’s American citizenship — he was actually a dual U.S.-Yemeni citizen — isn’t a shield against an attack. Dunlap comes with major credentials: Not only was he the Air Force’s top Judge Advocate General before retiring in 2010 as a two-star general, he coined the term “lawfare” to conceptualize the idea of viewing legal action on a continuum with war, not a departure from it.

If a U.S. citizen overseas presents an imminent threat, or is a participant in an organized armed group engaged in armed conflict against the U.S. — as the administration seems to be alleging is the case with al-Awlaki — the mere fact that he may also be accused of criminal offenses does not necessarily give him sanctuary from being lawfully attacked overseas as any other enemy belligerent might be,” Dunlap, now a law professor at Duke University, tells Danger Room.

Dunlap’s friend Mary Ellen O’Connell disagrees. And her credentials are just as impressive: She’s the vice chairman of the prestigious American Society of International Law, as well as a professor at the University of Notre Dame. Her argument doesn’t rely on Awlaki’s American citizenship.

“The United States is not involved in any armed conflict in Yemen,” O’Connell tells Danger Room, “so to use military force to carry out these killings violates international law.”

Dunlap’s argument doesn’t rest there. He also cites a precedent case from World War II and a DC courts ruling from just last year regarding Awlaki’s placement on the military target list. In the Awlaki case, the court found that he had a right to due process, but since he wouldn’t turn himself in, he forfeited that right. Further, the court wrote “there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is constitutionally committed to the political branches and judicially unreviewable.”

The trick is that Awlaki does not represent any recognized nation in his exhortations of violence. But he is a Yemeni citizen, and a unilateral strike against a Yemeni citizen constitutes an unprovoked act of war, according to O’Connell. Of course, the US is not at war with Yemen, but Al Qaeda, a stance that has allowed the Executive to pretty much to as it pleases with regard to pursuing the war.

The world has legislated war as war has become increasingly unruly. It seems a new set of laws are necessary to handle the frightening frontier of nations at war not with each other, but with a network of people loosely collaborative in their goal of destroying target nations.